HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loretta Baltrano

Applicant

-and-

Her Majesty the Queen in Right of Ontario

as represented by the Ministry of Community and Social Services and the Ministry of Labour, the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal

Respondents

DECISION

Adjudicator: Eric Whist

Date: February 5, 2010

Citation: 2010 HRTO 268

Indexed as: Baltrano v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS BY

Loretta Baltrano, Applicant ) Ben Bishop

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 31, 2009. The applicant alleges that the respondents discriminated against her in respect to services on the grounds of disability. This Decision addresses whether the Tribunal should dismiss the Application because it is outside the Tribunal’s jurisdiction.

BACKGROUND

2The Application indicates that the applicant was denied a claim for benefits by the Workplace Safety and Insurance Board (“WSIB”). The Application wrongly identifies the Workplace Health and Safety Board as a respondent rather than the WSIB. The style of cause has been amended accordingly.

3The Application indicates that the applicant appealed the WSIB decision denying her benefits to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). Her appeal was dismissed by WSIAT in a decision dated March 8, 2006.

4It appears that shortly before June 23, 2008 a Mr. Ben Bishop contacted WSIAT on the applicant’s behalf to ask for a reconsideration of the WSIAT decision. Mr. Bishop identifies himself as the President and Chairperson of Community Functionality Facilitation Inc.. WSIAT responded in a letter dated June 23, 2008. This letter was attached to the Application. WSIAT indicates to Mr. Bishop that he has to clarify his status as the applicant’s representative before WSIAT will accept Mr. Bishop’s request for a reconsideration on behalf of the applicant. The letter explains that persons wanting to represent others with matters before WSIAT are required to demonstrate that they are licensed or exempt under the Law Society Act, R.S.O. 1990, c. L.8 or its by-laws before they can act as a representative before WSIAT.

5It appears that the Application is alleging that the decisions by both WSIB and WSIAT in regards to the applicant’s benefits claim discriminate against her on the basis of disability as does the refusal of WSIAT to accept a request for reconsideration from Mr. Bishop. The Application further names the Ontario Ministry of Community and Social Services and Ministry of Labour as respondents although it is not clear from the Application what these respondents have allegedly done. The Application states that the last event of discrimination is June 30, 2008.

NOTICE OF INTENT TO DISMISS

6On December 17, 2009 the Tribunal sent a Notice of Intent to Dismiss (the “Notice”) to the applicant and Mr. Bishop, who was identified as the applicant’s representative. The Tribunal invited written submissions in response to its Notice. The Tribunal received submissions from Mr. Bishop dated December 29, 2009.

7The Tribunal‘s Notice states that the Application may be outside the Tribunal’s jurisdiction and it asks for submissions in response to four identified issues of concern. The first issue is that the Tribunal has held on a number of occasions that the content, reasons or results of decisions of other statutory bodies such as WSIB and WSIAT are outside its jurisdiction. For assistance, the Notice directs the applicant and Mr. Bishop to the Tribunal’s decision in Zaki v. Ontario (Community and Social Services) 2009 HRTO 1595.

8The second issue is that the Application was filed more than one year after the last incident of discrimination identified in the Application and no explanation was provided for why this delay was incurred in good faith or why this delay would not substantially prejudice the respondents. For assistance the Notice directs the applicant and Mr. Bishop to the Tribunal’s Decision in Thomas v. Toronto Transit Commission 2009 HRTO 1582.

9The third issue is that the narrative in the Application setting out the incidents of alleged discrimination fails to identify any acts of discrimination allegedly committed by the Ministry of Community and Social Services and the Ministry of Labour. The final issue is that Mr. Bishop’s status and authority to act as the applicant’s representative before the Tribunal is not clear in light of the Tribunal’s Policy on Representation. The Tribunal asks that this be clarified.

10In response to the Tribunal’s Notice, Mr. Bishop submits that the Accessibility for Ontarians with Disabilities Act (“AODA”) requires persons with disabilities to be provided with access to services and that the Tribunal has a mandate to enforce the AODA and its Regulations. Mr. Bishop submits that the delay in filing the applicant’s Application was because the applicant was unaware that she could apply to the Tribunal and because she also had to wait for WSIAT to make a decision in regards to her reconsideration request. Mr. Bishop provides no further explanation as to why the Ministry of Community and Social Services and the Ministry of Labour were identified as respondents. He states that the applicant does have counsel who represents her “for this Case”, namely John Potaglio. Mr. Bishop further argues that WSIAT should have processed the applicant’s request for reconsideration regardless of the status of the applicant’s representation as it is her right under “WSIAT” Regulations. Finally, Mr. Bishop contends that the applicant has new evidence that if provided to WSIAT would prove her disability and lead to her being granted WSIB benefits.

DECISION

11In making my decision I have considered the submissions of Mr. Bishop although the issue of his authority to appear before the Tribunal has not been resolved. I note, that while Mr. Bishop contends that Mr. Potaglio represents the applicant, it is Community Functionality Facilitation Inc. (of which Mr. Bishop is identified as President and Chairperson) that is identified as the applicant’s representative in her Application and it is Mr. Bishop who has corresponded with the Tribunal on the applicant’s behalf. There is no reference in the Application or any of the attendant documents submitted by Mr. Bishop to Mr. Potaglio or Mr. Potaglio’s involvement in the applicant’s case before the Tribunal.

12The Application is dismissed as it falls outside the Tribunal’s jurisidiction. The Application against the Ministry of Community and Social Services and the Ministry of Labour is dismissed on the grounds that the Application fails to provide information to indicate that these respondents may have allegedly committed an act of discrimination that falls within the meaning of the Code. When given a further opportunity to provide such information in response to the Tribunal’s Notice the applicant has failed to do so.

13The Application against WSIB and WSIAT is dismissed on the grounds that the applicant has failed to provide adequate reasons for why the delay in filing her Application against these respondents was incurred in good faith.

14Section 34(1) of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15The Application identifies June 30, 2008 as the last event of alleged discrimination. Accordingly, the Application, filed over one year later on July 31, 2009, does not meet the requirements of section 34(1).

16The issue I must therefore consider is whether the applicant’s delay in filing the Application meets the requirements of section 34(2), namely that the delay was incurred in good faith and would cause no substantial prejudice to the respondents.

17As stated in Miller v Prudential Real Estate 2009 HRTO 1241 in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an Application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.

18In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay (see for example Klein v. Toronto Zionist Council, 2009 HRTO 241, Johnson v. Toronto Community Housing Corporation, 2009 HRTO 1949 and Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343).

19The applicant does state in her Application in response to Question 7(d) which asks why an applicant is applying more than one year from the last event that “It took this long to get the case together.” I do not find this brief explanation establishes that the applicant’s delay in filing her Application was incurred in good faith. The suggestion that it took a long time to get the case together is a vague and not very helpful explanation for the delay in filing. It appears the applicant may be referring to the time needed to prepare her case to challenge the WSIAT decision of March 2006 or possibly the WSIAT decision made on or before June 30, 2008 to not accept the reconsideration request from Mr. Bishop on behalf of the applicant. In either instance, the reference to needing to get the case together suggests that what the applicant needed time for was to gather evidence or materials to challenge the merits of a WSIAT decision not to determine whether she could file an application under the Code. As noted in Klein v. Toronto Zionist Council, the opportunity for parties to submit an Application after the statutory one year limit does not exist in order to allow aggrieved persons to delay making an Application in order to gather evidence that confirms their suspicions or buttresses their case.

20Mr. Bishop further submits in his response to the Tribunal’s Notice that the applicant was not aware she could apply to the Tribunal and that she also had to wait for a decision regarding her reconsideration. Again this explanation is not very fulsome and is of limited help.

21I find the suggestion that the applicant did not know that she had a right to file an Application is inconsistent with the other proffered reasons for the delay, that it took time to get her case together and that she had to wait for a WSIAT decision regarding her reconsideration. This undermines the reliability of this stated reason. However, even if I was to accept that the applicant was unaware of her rights I do not accept that this is sufficient reason to conclude that the delay in filing her Application was incurred in good faith. As noted in Lutz v. Toronto (City), 2009 HRTO 1137 it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights. There is no information before me as to why the applicant could not have determined in a timely fashion that she could file an application with the Tribunal.

22The further contention that the applicant was awaiting a reconsideration by WSIAT is also not persuasive. The applicant has provided no evidence that a reconsideration request was being considered by WSIAT. Indeed the material the applicant provided to the Tribunal was that there was no active reconsideration being undertaken by WSIAT owing to Mr. Bishop not having clarified his authority to act as the applicant’s representative.

23The applicant has not demonstrated that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay (see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579). Consequently, the Application is dismissed.

24Given my findings with respect to delay, it is not necessary for me to rule on whether the WSIAT and WSIB decisions constitute services under the Code and whether they are within the Tribunal’s jurisdiction or not.

25I will conclude by stating that Mr. Bishop‘s contention that the Tribunal has a mandate under the AODA to enforce access to services for persons with disabilities is not correct. The Tribunal’s mandate derives from the Code and it is the Code that prescribes the Tribunal’s role in resolving complaints of discrimination in services on the ground of disability.